ORDER
S.S. Kang, Vice-President
1. Heard both sides.
2. The appellant filed this appeal against order-in-appeal passed by the Commissioner (Appeals). The brief facts of the case are that the appellant made import of goods, which were declared in the Bill of Entry as micro assembly classifiable under Heading No. 8542.50 of Custom Tariff. The goods were cleared after assessment by the proper officer thereafter show cause notice was issued to the appellant oh the ground that the goods in question are classifiable under Heading 8473.21 of Customs Tariff.
3. The contention of the appellant is that the goods in question were examined before clearance and the proper officer assessed the goods and duty was paid accordingly. The contention is that the adjudicating authority after taking into consideration of some other goods held that the goods in question are classifiable under Heading 8471.20 of the Customs Tariff. The contention is that no sample was retained by the Custom authorities, therefore, the issue of classification which was decided by comparing other goods which were not the same goods was wrongly decided by the lower authorities.
4. The contention of the Revenue is that these micro assemblies are to be used as part of calculators, therefore, are rightly classifiable under Heading 8473.21 of the Custom Tariff.
5. We find that no sample was retained by the Custom authorities in respect of the goods imported by the appellant. This fact is not disputed by the Revenue. The adjudicating authority decided the issue of classification after opening a calculator, which is neither manufactured by the appellant nor produced by the appellant held that micro assemblies which is part of calculator consisted of a PCB populated by one IC, one capacitor and one resistor and decided the classification of the goods imported by appellant. We find that there is nothing on record to show that the goods imported by the appellant are of description of the micro assembly, which was part of the calculator, which was opened by the adjudicating authority to examine the issue of classification. In these circumstances, the impugned order is not sustainable and set aside and the appeal is allowed.
(Operative part of the order pronounced in open Court on 19-11-2004)